Lipscomb v. Gialourakis

• Decision Date: 12 March 1931
• Citation: 101 Fla. 1130,133 So. 104
• Parties: LIPSCOMB, Sheriff v. GIALOURAKIS.
• Court: Florida Supreme Court

133 So. 104

101 Fla. 1130

LIPSCOMB, Sheriff v. GIALOURAKIS.

Florida Supreme Court, Division B.

March 12, 1931

Error to Circuit Court, Taylor County; M. F. Horne, Judge.

Habeas corpus proceeding by Baselios Gialourakis against F. L Lipscomb, as Sheriff of Taylor County. From a judgment discharging the petitioner, the respondent brings error.

Reversed.

Syllabus by the Court.

SYLLABUS

Chapter 14545, Acts of 1929 (Ex. Sess.), in the first place attempts to amend section 8087, Compiled General Laws of Florida 1927. That compilation known as Compiled General Laws of Florida 1927 has never been adopted as the statutory law of Florida and therefore it is doubtful whether a statute may be validly amended by reference to a section of that compilation.

Chapter 14545, Acts of 1929 (Ex. Sess.), purports to amend section 4 chapter 7389, Acts of the Legislature of 1917, relating to diving suits, helmets, etc., used by deep sea divers. The reference to chapter 7389, Acts of the Legislature of 1917 as used in this act, is hardly sufficient because referring to chapter 7389 we find it to be 'An Act to Protect and Regulate the Sponge Fishing Industry of the State of Florida, and to Provide a Penalty for the Violation of This Act, and Repealing All Laws in Conflict Therewith.'

Chapter 14545 attempts to convert by amendment the general law into a special law by limiting the territory in which it is applicable, and in its passage the Legislature did not comply or attempt to comply with the provision contained in section 21, article 3 of the Constitution.

Chapter 14545 being invalid because of not having been passed by the Legislature in conformity with organic law, the original legislative act remains in full force and effect.

The indictment sufficiently charges the offense under the provisions of section 5846, Rev. Gen. St. 1920, section 8087, Comp. Gen. Laws 1927, and this section contains nothing that may be said to be discriminatory.

All the bottoms of the gulfs and natural bays within the limits of the state of Florida passed to the state of Florida in its sovereign capacity when Florida was admitted into the Union.

It, therefore, appears that all of the state of Florida was required by the Constitution to be divided into counties, and therefore it must be construed that counties bordering on the Gulf of Mexico include that area within the gulf adjacent to the upland and out to the state boundary line.

Unless otherwise provided by statute, the rule applying to the territorial boundaries of riparian rights should be applied to locating the boundary lines of counties from the shore line to the state line in the gulf, and that is that, upon reaching the highwater mark, the line is extended into the water at right angles with the shore line. See Panama Ice & Fish Co. v. A. & St. A. B. Ry. Co., 71 Fla. 419, 71 So. 608.

The words 'To the Gulf of Mexico,' in defining boundaries of counties, will be construed to mean to the boundary line of the state of Florida in the Gulf of Mexico.

The state of Florida may exercise its powers of sovereignty over the waters of the Gulf of Mexico within the boundary lines of the state of Florida, and may regulate industries having as their basis the products of such waters, or the bottoms thereof, when carried on by persons, firms, or corporations, and in exercising such sovereignty may prescribe the means and methods by which such products of such waters, or of the bottoms thereof, may be taken therefrom for private and/or commercial uses.

The state may enforce its sovereign powers and rights through its courts, and for this purpose the courts of the state have jurisdiction over such areas, and the circuit court of Taylor county has jurisdiction to enforce the sovereign rights of the state over that portion of the Gulf of Mexico lying between the shore of the gulf and the state line three leagues distant from the shore and between lines drawn at right angles from the shore line from the mouth of the Aucilla river to the state boundary line and the line drawn at right angles from the shore line from where the western boundary line of La Fayette county touches the waters of the gulf to the state boundary line.

COUNSEL

J. R. Kelly, of Madison, Claude Pepper, of Tallahassee, and W. B. Davis, of Perry, for plaintiff in error.

Phillips & Thompson and Archie Clement, all of Tarpon Springs, for defendant in error.

OPINION

BUFORD C.J.

In this case the defendant in error was charged by indictment returned in the circuit court of Taylor county as follows:

'The Grand Jurors of the State of Florida, duly chosen, empannelled and sworn diligently to inquire and true presentment make in and for the body of the County of Taylor, upon their oath present that, John Kaloroukas, Andrews Hatzehaistodoulon, Damisnas Gialourakis, George Georgiades, Baseleos Gialourakis and Kostas Temaras late of said County, on the 23rd day of July A. D. 1930, in the County and State aforesaid, did maintain and use, for the purpose of catching and taking commercial sponges from the Gulf of Mexico in waters less than five fathoms deep north of twenty-six and one-half degrees north latitude and north of the mouth of the Caloosahatchee River in Lee County, Florida, within the territorial limits of the Stat of Florida, diving suits, helmets and other apparatus used by deep sea divers, contrary to the statutes for such cases made and provided and against the peace and dignity of the State of Florida.

'Second Count.

'And the said Grand Jurors aforesaid, upon their oaths aforesaid, further present and say that the said John Kaloroukas Andreas Hatzehaistodoulon, Damianas Gialourakis, George Georgiades, Baseleos Gialourakis and Kostas Temaras late of said County, on the 23rd day of July, 1930, in the said County of Taylor and State of Florida, did unlawfully take and catch by the use and means of diving suits, helmets and other apparatus used by deep sea divers and by other means and methods, a better description of which is to the Grand Jurors unknown, in the waters of the Gulf of Mexico, within the territorial limits of the State of Florida, commercial sponges measuring when wet less than five inches in their maximum dismeter, contrary to the statutes for such cases made and provided and against the peace and dignity of the State of Florida.'

Being taken into custody by the sheriff, he sued out writ of habeas corpus, and on hearing was discharged. The case is before us on writ of error to the judgment discharging the accused.

It is contended that the indictment charges no offense against the laws of the state of Florida, first, because chapter 14545, Acts of 1929 (Ex. Sess.) is invalid; that it is a special law and was not passed by the Legislature, as required by section 21, article 3 of the Constitution, as amended in 1928.

Next, it is contended that the indictment shows on its face that the offense was not committed within the jurisdiction of Taylor county. It is also contended that the indictment does not sufficiently charge a violation of the law.

Next, it is contended that the statute is invalid because it is class legislation.

Disposition of the first question will dispose of the two latter questions.

Chapter 14545 in the first place attempts to amend section 8087 Compiled General Laws of Florida. That compilation known as Compiled General Laws...